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1996 DIGILAW 199 (KER)

V. S. Achuthanandan v. State of Kerala

1996-05-27

B.M.THULASIDAS

body1996
Judgment :- This Original Petition is filed by the then Leader of Opposition in the Kerala Legislative Assembly, who has sought to bring to the notice of this Court, "the deplorable state of affairs concerning the tragic fate of what is widely known as the "ISRO Espionage Case', which has come up as an important and sensational matter for heated discussions on the floor of the Legislative Assembly on several occasions", and has sought "effective and adequate remedies, lest the image of the system of criminal investigation is blurred in the eye of the public and the public confidence reposed in concept of Rule of Law undermined in our democratic policy". He has set out the background and the facts and circumstances relating to Crime Nos. 225 and 246 of 1994 of the Vanchiyoor Police Station and has stated that the accused, who were questioned, had revealed the involvement of the 8th respondent, a high ranking police official in the State. But he was neither suspended nor arrested since the third respondent was of the opinion, that is unacceptable, that there were no materials to show his involvement in the case. He has also alleged that during the unscheduled visit of the then Prime Minister to Trivandrum he held closed door discussions with the 3rd respondent and soon afterwards the investigation was entrusted to the CBI with the consent of the State Government. The 7th respondent, however, made a report about the investigation conducted by him and his subordinates and, made a recommendation regarding the future course of action. The CBI investigation commenced with effect from 3.12.1994. On 13.12.1994, Niyama Vedi', Kochi filed O.P. No. 17367 before this Court for a writ of mandamus directing the 5th respondent to arrest the 8th respondent for his alleged involvement in the espionage case and for his suspension. But the Original Petition was dismissed by a learned judge of this court, whose decision was challeged in W.A. No. 1676 of 1994. The appeal was heard at length and finally the Division Bench dismissed it by judgment dated 7.1.1995, holding that it cannot direct the investigating officer to include a person as accused in a case pending investigation or to direct his arrest. The appeal was heard at length and finally the Division Bench dismissed it by judgment dated 7.1.1995, holding that it cannot direct the investigating officer to include a person as accused in a case pending investigation or to direct his arrest. But the decision contains certain observations regarding the conduct of the CBI officers, which the petitioner has summarised in paragraph 8 of the O.P. Against the decision of the Division Bench, SLP (Crl.) No. 942 of 1995 was filed before the Supreme Court by the 5th respondent and others, that was however dismissed by judgment dated 5.4.1995, with the observation that the adverse comments made against the CBI were premature and could have been avoided. Certain directions given to the 5th respondent regarding the investigation were also directed to be ignored. The Supreme Court however did not enter into the merits of the case or consider the correctness or otherwise of the findings of the Division Bench and agreed with the general view expressed that the investigating agency has to act in efficient and vigilant manner without being "pressurised". Copy of the judgment is Ext. P-2. But allegedly the CBI did not pursue the investigation along proper lines, ignored important materials already made available and came to certain findings, that were unwarranted. Petitioner has referred to certain press reports marked as Exts. P-3 and P-4, to show the ramifications of the cases and the need for afull-fledged in depth investigation to nab the guilty. He has also pointed out that there are conflicting versions given by the CBI and the CIB in regard to several material aspects. He has alleged that there had been a conscious attempt by the CBI to "misdirect the course of investigation" in order to protect certain persons, who are well-connected. According to him, in view of the uncertain fate of the case, where serious issues have been involved, which will have a bearing upon the safety and security of the Nation, it is necessary to have a judicial probe to set at rest the apprehensions of the public. As per Ext. P-5, he requested the 2nd respondent to appoint a Commission of Inquiry consisting of a sitting judge of this Court for a judicial probe into the "ISRO espionage deal", that was, however, rejected by the 2nd respondent as per Ext. P-6. As per Ext. P-5, he requested the 2nd respondent to appoint a Commission of Inquiry consisting of a sitting judge of this Court for a judicial probe into the "ISRO espionage deal", that was, however, rejected by the 2nd respondent as per Ext. P-6. According to him, appointment of a Commission of Inquiry is also necessary since reportedly the CBI has finalised a "closure report", that would soon be filed in the Court where the cases are pending and has referred to Ext. P-7 report in this behalf. He has also raised certain other allegations against the CBI in paragraph 15 of the O.P., which, it i s unnecessary to set out here being not very relevant. Ext. P-7 report in this behalf. He has also raised certain other allegations against the CBI in paragraph 15 of the O.P., which, it i s unnecessary to set out here being not very relevant. Ext. P-6 is challenged and he has prayed for a writ of mandamus directing respondents 1 and 2, - "to take urgent steps for appointing a Commission consisting of a sitting judge of the High Court under S.3(1) of the Commission of Inquiries Act, 1952 to hold a judicial inquiry as prayed for in Ext.-5 representation of the petitioner, or in the alternative, a writ in the nature of mandamus declaring that the said cases relate to definite matters of public importance which warrant the appointment of a Commission under S.3(1) of the Commission of Inquiries Act, 1952 for holding a judicial inquiry by a commission consisting of a sitting judge of the High Court, into the following aspects: (i) Whether any official secrets relating to or concerning the Space Research Work undertaken by the ISRO/VSSC in Trivandrum District, were divulged to outside agencies and/or any document, map, drawings or blue prints containing secret informations regarding satellite machineries or equipment were secreted from ISRO/VSSC by any persons or officers of ISRO by corrupt or illegal means; (ii) If so, the details of such persons and/or officers responsible for such acts; whether all or any o I them obtained for himself/ themselves or for others any valuable security or pecuniary advantage in consideration thereof from any outside agencies including agency of any foreign country; (iii) If so, whether such espionage works were capable of affecting the safety and security of the Nation; (iv) Whether there exists any flaw or defect in the prevailing system of keeping and maintenance of records/ documents containing official secrets and strategic informations in regards to Space Research and Satellite Machineries in ISRO Office at Trivandrum and if so, who are all responsible for the same and recommendations regarding measures to be adopted for safe custody of such records and documents to avoid the repetition of secretion/removal of such documents to outside/foreign agencies which may endanger national security and integrity of India". 2. Heard. 3. The cases referred to by the petitioner indeed had received wide media coverage. No doubt, the public are entitled to know the truth as far as it could be known. 2. Heard. 3. The cases referred to by the petitioner indeed had received wide media coverage. No doubt, the public are entitled to know the truth as far as it could be known. The CBI took over investigation with the consent of the State Government when it was in the hands of the local police with the CIB also in the picture, in view of the sensitive aspects involved, which reportedly had a bearing upon the National security. Indeed, it is not for this Court to examine the circumstances under which the investigation was entrusted to the CBI or whether there was justification for the same. Again this Court will not be justified now to examine the legality and propriety of the final report that the CBI has sought to file to put the lid on the cases. The said question would perhaps fall for consideration in separate proceedings if it becomes necessary to do so. As noticed already, the limited request of the petitioner is for a direction to the State Government to appoint a Commission of Inquiry in terms of S.3 of the Commission of Inquiries Act. Petitioner made a request in this behalf to the 2nd respondent as per Ext. P5, that was turned down as per Ext. P6, which has been challenged. No doubt, under S.3 of the Act, "3. Appointment of Commission - (1) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if are solution in this behalf is passed by the House of the People or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly: As the terms of the Section seem to indicate, it is within the discretion of the State Government to decide whether or not there is "any definite matter of public importance". The discretionary power of the Government, no doubt, will have to be exercised on relevant considerations with circumspection and restraint. There should also be proper application of mind in forming the subjective satisfaction. The discretionary power of the Government, no doubt, will have to be exercised on relevant considerations with circumspection and restraint. There should also be proper application of mind in forming the subjective satisfaction. If, however, the power is used for a purpose not authorised by law, it would be ultravires and without jurisdiction. It would bet ant amount to malafide exercise of power in the eye of law: SoeDhanabandhu Sethiv. Chintamani Sahu, AIR 1969 SC 215. Formation of opinion by the Government, which is subjective, is not justifiable unless it had been arrived at malafide. As rightly held in Harekrushna Mahtab v. CM. Orissa, AIR 1971 Orissa 175, the enquiry that the State Government might make to reach the decision is an administrative enquiry, in which no-one has aright to be heard. The second respondent has in Ext. P6 given reasons to reject the request made in Ext. P5, which cannot be termed as extraneous or fanciful. This Court would certainly not be justified to go into the question whether the reasons stated in Ext. P6 are adequate for rejection of Ext. P5. There had been a proper application of mind in reaching the decision as per Ext. P6, which seems to be not vitiated by mala fides. 4. Appointment of a Commission of Inquiry is not a substitute for a criminal investigation, that would be deserved to bring the guilty to book. If after a thorough investigation, the allegations were found hollow, appointment of a Commission of Inquiry into the same matter would perhaps be inapt and a waste of public time and resources. No doubt, the public have a right to know the truth. But then the petitioner is not right to say that the truth could be known only if a Commission of Inquiry is appointed in terms of Ext. P5. But then I must say that Ext. P-6 has not said the last word. It would be open to the Government to re-examine and review the materials and if satisfied as to the existence of "a definite matter of public importance" appoint a Commission of Inquiry, de-hors Ext. P-6. We must rest upon the good sense of the Government, which has a duty to see that the guilty do not escape. It could hardly afford to ignore public feelings, sentiments and resentment on vital issues of concern. P-6. We must rest upon the good sense of the Government, which has a duty to see that the guilty do not escape. It could hardly afford to ignore public feelings, sentiments and resentment on vital issues of concern. But then, having regard to the facts and circumstances, as they now exist, I must uphold the reasons stated in Ext. P6 and the decision not to appoint a Commission of Inquiry. Dismissed.